Assi

FUNDA
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CONSTI
entTUTION
01
SEPARATION OF POWER IN SRILANKA

N.
SUJITHASH
2015/L
/039
DEP.OF
LAW
UOJ

Contents

Introduction

Separation power in united

kingdom

Separation power in united states

Separation of power how to work

in Sri Lanka

Separation of power in 19th

amendment

conclusion

Introduction
Separation of power is a legal concept which was introduced for the implementation
of the government without struggle. On the footing of separation of power,
obviously it can be denoted as separate the power of the government generally a
government has 3 organs. Such are executive, judiciary, legislation therefore in the
initial period of application of separation of power applied as pure separation of
power. It means that there were clearly define the area of those 3 organs without
any intervene of another organs. This approach resulted as failure of function of the
government because government cannot function on pure separation of power.
Subsequently the concept of check and balance incorporated in to the doctrine of
separation of power. Check and balance democrats as a system in which the
different part of an organization (such as a government) have powers that affect
and control the other parts so that not part can become too powerful.
Therefore by way of above said matter the doctrine of separation of power can be
defined in nowadays as followed, the separation of power the sprite of the law
where he urged for a constitutional government with three separate
branches of government. Each of the three branches would have defined
abilities to check the powers of the branches1.
When trace back the history of Sri Lanka before 1978 constitution cannot be
identified the application of separation of power. Nonetheless, article 3 of the 1978
constitution speaks about sovereignty of article 4 of the people can be exercised the
legislative power of the people shall be exercised by parliament, the executive
power of the people shall be exercised by the president, the judicial power of the
people shall be exercised by parliament through courts, tribunals and institution
created by parliament2.
Therefore the separation of power enunciated in the article 4 of the constitution.
However there is a question whether the concept of separation of power
comprehensively function in Sri Lanka or not?
Thereby the application of Sri Lanka can be analysed as follows

1 MONTESQUIEU
2 Article 4 of the constitution

Separation of power in United Kingdom

The conception of the separation of power has been applied to the United Kingdom
and the nature of the executive, judiciary, legislation. In practically queen is a head
of the state she can interfere in all three organs of government and it is the
democratic control through the House of Commons and the party system. The
United Kingdom parliament creates law through the authority of the queen in
parliament, securing the support at least the House of Commons and usually the
House of Lords although since the Passing act of the parliament act 1911 this has
not been necessary3. The judicial function determines the outcome of disputes and
performs minor legislative and administrative function4. The introduction of a tax is
a legislative function collecting tax is an executive and administrative function
setting tax disputes is a judicial function as judicial review of executive decision5. In
UK the court exercise certain legislative function for example the making of rules of
procedure and administrative of the estate of deceased. But according to
MONTESQUE he mainly worried and took care about the independence of judiciary
thats way he proposed the concept of separation of power. But here in UKs
situation is going away from the concept. There is no separation of power. There is a
greater degree of separation of powers in Sri Lanka because ENGLAND does not
have at least written documents.

Separation of power in United States

Montesquieu declared that under the model, the political authority of the state is
divided in to legislative, executive, and judicial powers. He asserted that, to most
effectively promote liberty, these three powers must be separate and acting
independently. The main Reason for the separation of power in United States is to
prevent abuse of power. Mainly check and balance system is follow. The legislative
power is vested on congress. In American in 1998 CLINTOM V. CITY OF
NEWYORK6 case held that congress could not delegate a line- item veto to the
president by powers vested in the government by the constitution. The executive
power vested, with exception and qualification7, in the president. The constitution
does not require the president to personally enforce the law rather officers,
subordinate to the president may perform such duties. The judicial power to decide
cases and controversies is vested in Supreme Court and inferior courts established
by congress8. The judges must be appointed by the president with the advice and
consent of the senate. The senate is important part of separation of power in US.
Legislative courts may not exercise the judicial power of the United States. The
3 BRADLY, EWING (2007). P. 82
4 BRADLY,EWING (2007) P. 83
5 BRADLY, EWING (2007) P. 81
6 524 U.S. 417 (1998)
7 TWO, section 1
8 Article 1 and 3 tribunals and jurisdiction stripping

executive branch is responsible for implementing and administering the public

policy enacted and funded by the legislative branch. And also the judicial branch is
responsible for interpreting the constitution and laws and applying their
interpretations to controversies brought before and court check both the executive
branch and legislative branch through judicial review. Legislative courts may not
exercise the judicial power of the United States. In MARRAYS LEE V. HOBOKEN
LAND& IMPROVE9 the case decided legislative courts may only adjudicate public
rights question. America is a best example for the separation of power. Many
political scientists believe the separation of powers is decisive factor in what they
see as limited degree of American exceptionalism.

9 59 U.S. 272 (1856)

How to check and balance working in Sri Lanka among the organs is
described below

Executive and judiciary

When looking at judiciarys control over the executive article126(1) says supreme
court has jurisdiction to hear and determine any question relating to infringement or
imminent infringement of fundamental and language right by executive or
administration action. 10But article 35(1) gives immunities to the president against
any lawsuit. In MALLIKA V. SIVAPASAPATHI11 it is held that any act or omission of
president in his capacity as a cabinet minister could be made the subject of an
application under article 126(1) it should be noted that according to article 35(3)
proceeding can be instituted against the attorney general as representing the
president. Here attorney general is made by president, but this does not extend to
acts or omission of the president in his exercise of power which are not covered by
article 44(2)12. In KARUNATHILAKA V. DAYANANDA DISSANAYAKA13 its held that
once the president has ceased to hold office he may be held accountable in the
ordinary rout of law but here it is does not have directly control over the president
while he is holding office. This argument was also cited in VICTOR IVAN AND
OTHERS V. SARATH N. SILVA14.
Judiciary also has a check on executive when allegiance against the president is
being held even though parliament conduct the removal it is the Supreme Court
which analyse the charges against him.it must be noted that Supreme Court has
jurisdiction to determine the validity of the presidential election. When supreme
court analysing such validity presidents immunity against any law suit does not
count in to account.eg; supreme court analysed the validity of the election of
SRIMAVO BANDARANAYAKA by this it is clear even though judiciary has some check
over executive it is not enough in practice.
Next we must looking in to how executive control the judiciary article 116 declares
interference with judiciary is an offence even though the independence of judiciary
is guaranteed by this, there are certain situation where executive interferes with
judicial function according to article 107 president shall appoint chief justice,
president of court of appeal and other judges of court of appeal and supreme
court15. It further says removal chief justice and judge of supreme court and can be
done by the president upon an address of the parliament by giving president the
power to appoint and remove supreme court judge it is made clear in practice
president has control over judiciary, because he can appoint judges who are
10 Art 126 (fundamental rights jurisdiction and its exercise)
11 S.L.R PGE 74 (1975)
12 MINISTER OF CABINET AND THEIR SUBJECT AND FUNCTION
13 S.L.R PGE 157 (1999)
14 S.L.R PGE 301 (1998)
15 Art 107 (judge appointment and removal)

favourable to him. I think In SHIRANEE BANDARANAYAKAE CASE16 it is best

example to this executive control judiciary.
Article 34(1) (A) gives president the power to grant pardons and respites. It also
undermines judiciary authority. And article 110 also gives president the power to
call upon the judge of the Supreme Court or court of appeal to perform or discharge
any other appropriate duties or function under any written law. When looking at
article 107 (5), it says about judge retirement age here it is possible to interpret this
provision as providing scope for executive interference or control with the judiciary.
President also appoints the two members of judicial service commission17 in this
place we can see the control of judiciary by executive. Next we should note
appointment and removal of high court judges18. Here high court judges are subject
to disciplinary control and removable by president on the advice of the judicial
service commission by this president also has control over high court.
Above mentioned articles and provisions clearly reveals in theory judicial is free
from control but in practice it is heavily controlled by the executive. And president
immunity is also an insult on the wounds.

16 13 NOV 2012 (FILE UNDER DOCUMENTS, PRESS RELEASES)

17 ART 112 OF THE CONSTITUTION(THE JUDICIAL SERVICE COMMISION)
18 Art 111 of the constitution

Executive and legislative

Executive includes president, cabinet of ministers and public service 19. The
cabinet of ministers except the president are selected from Member of Parliament.
Cabinet of ministers except president take part in executive and legislative matters.
According to article 44 and 45 president shall appoint ministers and deputy
ministers from members of parliament. According to the article 49(2) of constitution
parliament can dissolve cabinet through appropriation bill or vote of no confidence.
Cabinet of ministers of collectively responsible for the parliament but even though
the president is responsible he is not answerable for the parliament. Next we noted
when cabinet of ministers dissolved the president shall continue in office20. So the
president is not answerable to the parliament.by this it is clear that herd of
executive is separate from the control of the parliament. President is not a member
of the parliament he does not have voting rights in parliament.
When looking in to legislative according to article 76(1) parliament cannot set
up any authority which challenges its legislative power. But according to article
76(3) parliament can empower any person or body to make subordinate legislation
for prescribed purposes. Article 76(2) says parliament can empower the power the
president to make emergency regulation regarding public security but it is should be
noted that in YASAPALA V. MINISTER OF EDUCATION21 its held that Presidents
power of making emergency regulation is co- extensive with that of parliament.
Constitution enables that the parliament can enable check by requesting the
regulation to be approved by parliament. And next will see removal of the
president22. Any minister of parliament may by writing addressed to the speaker,
given notice of a resolution alleging that the president is permanently incapable of
discharging the function of his office by reason of mental or physical infirmity or
that the president has been guilty of intentional violation of the constitution,
treason, bribery, misconduct or corruption involving the abuse of the powers of his
office when allegiance has been going the legislative has control over the president
but in reality it is nearly impossible to remove president from power for he can
dissolve parliament whenever he wants after its selection of one year.
According to the article 36 says salary, allowance and pension of the
president are determine by the parliament. It is also a way legislative can control
the executive but parliament can only increase presidents salary and cannot
decrease it. Even though the executive has administration of public finance. When
executive utilize public finance it is necessary to have parliaments approval.
Parliament shall have full control over public finance.
When looking at executive control over legislative, according to article 70(1)
the president can summon, prorogue and dissolve parliament but 19th amendment
says president can only dissolve parliament after 4 years of its selection article 85
(1) allows the president to submit certain bills for referendum. When a bill is
19 Chapter 9 of the constitution
20 ART 43 (2) OF THE CONSTITUTION
21 S.L.R VOL.2- P164 (1983)
22 38 (2) of the constitution

rejected by parliament, if the president feels the bill is necessary for the country
according to article 85(2) he can submit if to referendum. Article 122(1) (b) says
about president can submit certain urgent bills to chief justice in order to test their
constitutionality. When looking executive can make laws without the approval of the
parliament. It can be an undermining factor to parliaments legislative authority.
When looking at article 32(3) president can attend, address or send message to
parliament at any time by these provisions it is clear that even though in theory the
executive is subject to certain checks by parliament but in terms of reality there is
little separation of power between executive and legislature. And presidents powers
makes parliament subject to executive.

Legislative and judiciary

Whenever judicial and legislative power joins together liberty of the people
would be exposed to arbitrary control. In the LIGANAGE V. THE QUEEN23 it has
been said that any attempt made by legislature to interfere with judiciary other than
by reference to constitutional provision would be void. 1978 constitution separates
judiciary from legislation. Article 4 says judiciary power of the people shall be
exercised by parliament through courts and other institution established by law. But
article 91(1) (d) (1) says judicial officers cannot be a member of parliament. It
clearly secure judiciary independence, article 80 of the constitution point out that
no court can inquire or call in question the legislative authority secured by the
constitution.
When looking into judicial control over judiciary, even though article 80(3)
forbids judicial review over any act passed by the parliament, it does not forbid pre
enactment judicial review for bills thus judiciary can review any bills validity before
it is passed as act but in practice the time which given to judicial review is not
enough. The Supreme Court has power to determine whether any provision of a bill
amounts to an amendment or repeal of or is inconsistent with any provision of the
constitution in which case such bill can be passed only by requisite 2/3 majority in
parliament. According to the article 83 Supreme Court has power to determine
whether certain bill require approval by a referendum in addition to 2/3 majority
vote in parliament. This requirement was also cited in WICKRAMANAYAKE V. THE
STATE24 and article 121(2) says when argument against bill is being held in
Supreme Court parliament cannot pass that bill in to an act. It can only do so after
Supreme Court decided that bill can be passed or the expiration of a period of three
weeks from date of such petition. By article 136 constitution also gives power to
Supreme Court regarding rules regulation practice and procedure of court.
Now we looking legislative control over judiciary according to the article
107(2) Supreme Court and court of appeal judges can be removed from office by
parliament, but such removed from can be done only by an order of the president
and on the ground of proved misbehaviour or incapacity. Parliament can also decide
the salaries of the Supreme Court judge and court of appeal judges25. According to
article salaries can be also used as control over judges. But article 108 (2) limits
23 AC 259; 68 NLR 157
24 S.L.R 3 VOL 20 (1997)
25 ART 108 OF THE CONSTITUTION

such control be reduced after the appointment of the bill through referendum. Even
though article 116(1) makes interference with judiciary an offence it can be argued
that by openly vesting public officers with powers of judicial nature legislative can
interfere with the judiciary on the ground that judicial power not only exercised by
judicial officers only, it can be also done by public officers or other persons
entrusted by the law. Judicial matter regarding parliamentary privileges can be
exercised by the parliament. In PREMACHANDRA V. MONTAGUE
JEYAWIKRAME26 it is held that courts cannot decide issues regarding parliament
privileges.
Above mentioned statements clearly provides that are certain degree of
independence for both from each other at the same time there are some each. But
the exclusion of post enactment judicial review makes. Judiciary check over
parliament less power full.

26 SLR VOL-2 PGE 339 (1994)

Separation of power in 19th amendment

1978 constitution is criticised by the political eminence. Because it is the pointing
the powers to executive president. So 19th amendment is a historical mile stone.
Because it is mainly reduce the powers of the president. It has some special
peaches.
First of fall the 19th amendment arranged a security power to legislature from
executive. Which means before according to 33 section president cannot dissolved
the parliament at any time. But now he can dissolved the parliament after 4
majority27. This is also ensuring the separation of power. And here also legislature
control the executive power. According to the article 35 president has some
immunity powers. Anybody cannot suit any case against him. But after the 19th
amendment we can file the case against him under the fundamental rights. So
judiciary is snidely control the executive.
19th amendment rearranged the constitutional council so it is a big barrier to
president dangerous decision. So president have to obey the parliament members.
So 19th amendment is not fill the separation of power concept. But this is the
starting point to the rule of law and good governance. So the future constitution
should give the predominance place to separation of power.

27 ARTICLE 33(1) OF 19TH AMENDMENT

Conclusion
The doctrine of separation power is an essential and substantial elements
which effect or enhance the sole of the democratic. Separation of power when its
tendered. Only one the documents it cannot be call as a democratic. On the other
hand in the when the doctrine play as a cardinal role via implementation and
enforcement process which is resulted in actual practice by what is stated in the
real separation of power. In accordance with Sri Lanka 1978 constitution the
application of the reparation is in the form of documents level. Even article 4 clear
by enunciated the separation of power. Nonetheless the executive presidential
system which is resulted as defeat the application in of the separation of power.
Because compliance with 1978 constitution explicitly revealed that the body of the
executive has the power with regard another body of the government. Namely
legislative, and judiciary.
Despite the arrival of the 19th amendment to the 1978 constitution celebrated
as conform the restriction against executive not in full manner but in the limited
manner. Any how it want to highlights that in some extend the application of the
separation of power awarded in 19th amendment.

Therefore in lights of scholars view which are expects in constitutional studies

they regiment separation of power which is able to executive the function as the
time with second balance. In currently constitutional reform is hot topic in Sri Lanka.
Therefore the coming new constitution necessary considered the matters of
separation of power with regard no anybody of the government much more
influence in another organ at time function it self with process of check and
balance. If it so the defect in 1978 constitution will be cure in the new constitution.
The people of the Sri Lanka expect the function of the government as the good
government and much more expect in ensure the democratise from good
application of separation of power.

Reference
open university in fundamental constitution (part of sop)
doctrine of separation of power ( ALTHAF MARSOOR)
www.law Lanka net. Com
Article of Bradly, Ewing
Constitution of the democratic socialist republic of Sri Lanka
(1978)

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